POLITICS

Chief Justice Roberts Made 'Human Error' In Overlooking Conflict Of Interest

The head of the Supreme Court inadvertently participated in a case involving a company where he had a significant financial stake.

Earlier this year, a Supreme Court justice took action in a case where he had an unintended conflict of interest.

Actually, that happened twice this year. One of the incidents involved Justice Stephen Breyer, and you might have heard about that, because it led the court to make public a letter explaining the ordeal.

The other incident involved Chief Justice John Roberts, and you may not have heard about that one, because it just came to light this week. Back in October, Roberts participated in the consideration of an appeal involving Texas Instruments -- a company in which Roberts or one of his family members holds stock worth up to $250,000, according to his latest financial disclosure form.

Fix the Court, a nonprofit that lobbies for more transparency and accountability at the high court, first discovered Roberts' oversight and published the findings on its website Friday.

Kathleen Arberg, the court's public information officer, told Bloomberg that Roberts' mistake was no more than "human error."

"There was a conflict that should have been caught but was not," she said.

Under federal law, judges at all levels of the federal judiciary must "disqualify" themselves from a case when they have a financial interest in it. 

But Roberts somehow overlooked the fact that Texas Instruments -- best known for the ongoing supremacy of its outdated graphing calculators -- was one of several companies hoping to convince the court to take up their case, an environmental cleanup dispute.

In the end, Roberts' conflict didn't matter because the court rejected the appeal outright in October, on the first day of the court's current term. No explanation was given for the rejection.

Later that same month, Breyer was embroiled in a similar conflict in a big energy case, forcing him to sell off about $33,000 in stock after a reporter blew the whistle on it.

Justice Stephen Breyer was forced to sell off $33,000 worth of stock after a reporter discovered he inadvertently heard
Justice Stephen Breyer was forced to sell off $33,000 worth of stock after a reporter discovered he inadvertently heard a case where he had a conflict of interest.

"Chief Justice Roberts' oversight, as well as Justice Breyer’s similar mistake, demonstrate that the Supreme Court’s current system of self-checking for conflicts isn't working," wrote Gabe Roth, Fix the Court's executive director, on Friday. 

After Breyer's mishap, The National Law Journal reported that the justices have a seemingly arcane and non-uniform approach to avoiding potential conflicts, feeding the "long-standing perception of the court as a collection of nine separate law offices that do things their own way, without much coordination among chambers."

"The conflict-checking process is an internal one carried out by the individual chambers," Arberg said at the time. "The process does not include use of software."

It's not clear whether Roberts' and Breyer's oversights will usher in more modern mechanisms at the Supreme Court -- but the question could be answered soon. Later this month, Roberts will be issuing his year-end report on the federal judiciary.

"I hope that the chief justice acknowledges some of these institutional shortcomings in his year-end report, and that he'll make some reforms and some changes that will make the process more open and will reduce the chances of this happening yet again," Roth told The Huffington Post.

In the past, Roth has called for requiring justices to set up blind trusts in order to avoid financial recusals altogether, since recusals can lead to 4-4 ties in potentially game-changing controversies like last week's affirmative action case. (Justice Elena Kagan was absent from that hearing for a non-financial reason: her prior role as solicitor general in the Obama administration.)

Justice Anthony Kennedy, who is widely expected to play a pivotal role in that case, once told members of Congress that such 4-4 ties "mean that everybody's time is wasted."